Wheel clamping by South West Trains
Toby Micklethwait
Sorry if this is an FAQ. Where is FAQ for this newsgroup? Is
wheelclamping on FAQ?
Can you point me to a site which deals with the legality of
wheelclamping on "private land" such as the land leased by Railtrack to
South West Trains?
Where can I read the whole judgement in Arthur v Anker? What other law
is relevant?
We are setting up a Clamping help line on www.moneyshield.co.uk. Free
advice to clampees. Please point to the site if you sympathise with
clampees.
Is it a good idea to cut the clamp off and give the clampor your name
and address and say "please sue me - see you in court"?
--
Toby Micklethwait - co-author of "Computer aided financial advice"
programs - www.moneyshield.co.uk - 01932-873557.
Joel Hogarth
Toby Micklethwait <to...@micklethwait.demon.co.uk> wrote:
>Is it a good idea to cut the clamp off and give the clampor your name
>and address and say "please sue me - see you in court"?
You haven't read Arthur v Anker have you? In that case the owner of the
vehicle did just that - towed his vehicle away and cut the clamps off. He
was made to pay damages (and much larger costs) The basis of the decision
was that the owner, by reading the clear sign, consented to his car being
clamped - and the clamper could charge a reasonable fee to remove it.
The argument based on consent is, IMO, not a good one. In theory, a clear
notice on the car stating "I HEREBY WITHDRAW MY CONSENT TO ANYONE
CLAMPING MY CAR" should be sufficient to render such clamping illegal.
Added terms as to what quantum of damages for inconvenience you would
like would heighten the legal fun.
A much better argument, again IMO, would be on trespass. Clamping is a
trespass to the car, the car's presence is a trespass to the land.
Subtracting the damages of one from the other could lead to a figure in
the region of (for arguments sake!) £40 !
Joel
Marshall Rice
In article <69nmm0$m0e$1...@lyra.csx.cam.ac.uk>, Joel Hogarth
<jr...@cam.ac.uk> writes
Close, but no cigar.
AIUI wheelclampers purport to derive their authority from the old common
law right of distress damage feasant. Tresspass alone would confer no
right to impound the chattel concerned.
Not bad for a beginner, though :-)
--
Marshall Rice
Joel Hogarth
Marshall Rice <Mars...@msrice.co.uk> wrote:
>>A much better argument, again IMO, would be on trespass. Clamping is a
>>trespass to the car, the car's presence is a trespass to the land.
>>Subtracting the damages of one from the other could lead to a figure in
>>the region of (for arguments sake!) £40 !
>
>Close, but no cigar.
>
>AIUI wheelclampers purport to derive their authority from the old common
>law right of distress damage feasant. Tresspass alone would confer no
>right to impound the chattel concerned.
>
>Not bad for a beginner, though :-)
Well, I got a high first using that argument in my 1A Tort Tripos - I'll
try and restate it ;-)
But I'm not saying that the clamper has a RIGHT to clamp. I'm saying that
clamping IS a trespass, just as the parking on someone else's land is
also a trespass. Now, assign the land owner's right to claim to the
clamping company. Then the clamping company can sue the illegal parker
for his trespass, and the parker can counter-claim for the clamper's
trespass. Now subtract the one figure for the other and arrive at the
magical figure of £40 (or whatever it says in the notice - which can also
be regarded as a limitation/exemption clause!)
Unfortunately, there is no authority in the old common law for clamping -
abatement would be allowed, but this involves removing the car from the
land, not keeping it there. What common law principle do you know that
allows a person to commit the torts of trespass and conversion over
property up to £100,000 ? The best the House of Lords could come up with
(Arthur v Anker) was consent. And as I have posted before this is not
very good, and easily overcome.
I must go and look up that case again!
Joel
Marshall Rice
In article <69o9to$437$5...@lyra.csx.cam.ac.uk>, Joel Hogarth
<jr...@cam.ac.uk> writes
>
>Unfortunately, there is no authority in the old common law for clamping -
Unfortunately there is some authority: a 19th century case decided that
the right of distress damage feasant extended to railway rolling-stock -
the nearest thing to motor vehicles then in existence.
>
>abatement would be allowed,
No. If distress damage feasant does extend to motor vehicles, then such
distress would not be wrongful and accordingly open to abatement. Anyone
recovering a vehicle so distrained upon would commit the tort/s of
rescue (rescous) and/or pound breach.
>but this involves removing the car from the
>land, not keeping it there. What common law principle do you know that
>allows a person to commit the torts of trespass and conversion over
>property up to Ł100,000 ?
See above.
>The best the House of Lords could come up with
>(Arthur v Anker) was consent. And as I have posted before this is not
>very good, and easily overcome.
>I must go and look up that case again!
So must I.
--
Marshall Rice
Axel
Marshall Rice (Mars...@msrice.co.uk) wrote:
: AIUI wheelclampers purport to derive their authority from the old common
: law right of distress damage feasant. Tresspass alone would confer no
: right to impound the chattel concerned.
Was there not a Scots decision which found clamping to be a form of
extortion?
Graham Nicol
AFAIK in Scotland it is extortion for anyone apart from the polis to clamp a
car... I always look for those places that have "Private Car Park,
Unauthorised vehicles will be clamped" signs and park there.
--
Graham
My views are my own, my employer has their own, remember that
Remove NOSPAM from email address to send email to me
Axel wrote in message ...
Marshall Rice
In article <34cb8fb9...@news.clara.net>, Marc Living <marc@equity.B
OUNCEBACK.clara.net> writes
>On 16 Jan 1998 18:46:16 GMT, Joel Hogarth <jr...@cam.ac.uk> wrote:
>
><snip>
>
>> What common law principle do you know that
>>allows a person to commit the torts of trespass and conversion over
>>property up to Ł100,000 ?
>
>practitioners are regularly "arresting" ships and aeroplanes worth far
>more than Ł100,000 to settle debts which might be a fraction of the
>value of the arrested vessels.
Indeed.
The power of arrest most frequently exercised in such cases (that of the
Admiralty Marshal) is statutory, but several species of common-law
maritime lien also give rise to powers of arrest of ships and/or their
cargos.
The Piers Docks and Harbour Clauses Act (18-?) also gives a power of
arrest, but that Act only re-stated what had long been the common-law
position, that a right of arrest existed in respect of unpaid harbour
dues or mooring fees analagous to the right of distress damage feasant,
and added a power of sale.
In a recent case, "The Blitz", AIR, it was held that such rights took
precedence over any and all pre-existing rights or interests, including
those of a registered mortgagee. In that case, the relevant harbour
authority seized the vessel in question and sold it for a pittance,
covering their own unpaid dues but not the outstanding and properly
registered marine mortgage. The mortgagees were held to have no
recourse!
Given the readiness with which derelict piers and disused docks may be
acquired for peppercorn rents all around the country, I await the
inevitable scams with interest.
--
Marshall Rice
Rainer Thonnes
In article <0kdEUHAr...@msrice.co.uk>,
Marshall Rice <Mars...@msrice.co.uk> writes:
> Joel Hogarth <jr...@cam.ac.uk> writes
> >
> >A much better argument, again IMO, would be on trespass. Clamping is a
> >trespass to the car, the car's presence is a trespass to the land.
> >Subtracting the damages of one from the other could lead to a figure in
> >the region of (for arguments sake!) £40 !
>
> Close, but no cigar.
>
> law right of distress damage feasant. Tresspass alone would confer no
> right to impound the chattel concerned.
I like the "purport" bit. Has it not been tested, then?
--
I don't know whether there really is a ukol.com.
In any case I'm not there, I'm at dcs.ed.ac.uk.
Joel Hogarth
This sounds very interesting - can you tell me any more? Such as: is
there a contract between the parties? Does this provide the authority? is
this the same as sending in debt collectors? or right of hypothec as in
HP agreements?
You got me interested and I really don't know anything about this bit of
the law ;-)
Joel
Toby Micklethwait
In article <En178A.DDD.0.sta...@dcs.ed.ac.uk>, Rainer
Thonnes <r...@ukol.com> writes
>In article <0kdEUHAr...@msrice.co.uk>,
>Marshall Rice <Mars...@msrice.co.uk> writes:
>> Joel Hogarth <jr...@cam.ac.uk> writes
>> >
>> >A much better argument, again IMO, would be on trespass. Clamping is a
>> >trespass to the car, the car's presence is a trespass to the land.
>> >Subtracting the damages of one from the other could lead to a figure in
>> >the region of (for arguments sake!) £40 !
>>
>> Close, but no cigar.
>>
>> AIUI wheelclampers purport to derive their authority from the old common
>> law right of distress damage feasant. Tresspass alone would confer no
>> right to impound the chattel concerned.
>
>I like the "purport" bit. Has it not been tested, then?
>
will assist my website. Please point to moneyshield.co.uk for all
clamping problems.
THE FACTS...
The actual story is that a close friend of mine (single, female, age 29)
was clamped at Virginia Water station at about 10pm on Friday 9.1.98 - a
pretty awkward time. She parked from 2000 to 2300 (dark at all times).
She believed that there was no charge at that time of night, which used
to be true until recently. She was unaware of any clamping.
We faced a challenging time trying to find out the law and our rights
over the weekend. We faxed (1544 on 13.1.98, 2034 on 13.1.98, 1306 on
14.1.98) 3 blunt letters to the SWT company secretary to which we have
had no reply as at 1419 on 19.1.98. We mentioned piracy, highwaymen,
banditry and lots of other words I dont know the meaning of.
We also mentioned tort and the passenger charter which includes "we will
work hard at providing steadily improving levels of customer service".
At 11pm on 13.1.98, not having been informed of any legal justification
by either the clampers or SWT for the trespass to property, we cut the
padlock and released the car.
Although the demand note mentions 6 months in jail, I have yet to felt a
police hand on my collar.
Has anyone ever gone to jail for forcibly removing a clamp, on private
land?
If not, then the demand note is clearly a misrepresentation in that
respect. A false pretence.
The matter (if on private land) seems to be a question of civil law in
which the rights are not completely clear. Therefore my advice is this:
* give your name and address
* cut the clamp and drive off
* await correspondence.
If the car has been removed then there are additional problems - about
which I have no suggestion.
The contractual position seems to be that if you park on land then you
have agreed to a contract which contains clauses which are (a) on the
sign (or implied) and (b) reasonable.
We have pointed out to SWT that clamping at Virginia Water is not
reasonable because there was a previous system, not involving clamping,
that worked OK. Also clamping is unreasonable under the passenger
charter.
Marshall Rice
In article <En178A.DDD.0.sta...@dcs.ed.ac.uk>, Rainer
Thonnes <r...@ukol.com> writes
>In article <0kdEUHAr...@msrice.co.uk>,
>Marshall Rice <Mars...@msrice.co.uk> writes:
>> Joel Hogarth <jr...@cam.ac.uk> writes
>> >
>> >A much better argument, again IMO, would be on trespass. Clamping is a
>> >trespass to the car, the car's presence is a trespass to the land.
>> >Subtracting the damages of one from the other could lead to a figure in
>> >the region of (for arguments sake!) £40 !
>>
>> Close, but no cigar.
>>
>> AIUI wheelclampers purport to derive their authority from the old common
>> law right of distress damage feasant. Tresspass alone would confer no
>> right to impound the chattel concerned.
>
>I like the "purport" bit. Has it not been tested, then?
I have yet to look up the case referred to earlier in the thread, but
not AFAIK.
Whether or not it would fly would, I think, depend on the circumstances
of the particular case, since for such distress to be lawful it is a
prerequisite that the chattel distrained is actually "damage feasant". A
car wrongfully occupying a parking space which a rightful user might
wish to avail himself of would clearly meet that criterion, as would one
parked on an ornamental verge, but what of one parked in a fee paying
area without payment, or more particularly one parked temporarily on
wasteland? Would such vehicles encumber the land to a sufficient extent
to found a right of distress? I think probably not.
And what is the extent of the right? It clearly extends to recovery of
any and all losses suffered as a result of the encumbrance, such as the
cost of moving and storing an offending vehicle, but what of the
"ransom" fees charged by clampers? It is at least arguable that the act
of clamping does nothing to mitigate the damage and so is not
recoverable. The counter-argument, of course, is that it is necessary in
order to enforce the right, but if that is ever true, it is certainly
not in cases where the vehicle in question could be impounded merely by
locking a gate, or refusing to lift a barrier.
--
Marshall Rice
Fergus O'Rourke
Forgive me for coming in late with this, but is it not the case that SWT
runs the trains and Railtrack the carparks ?
Toby Micklethwait wrote >
Joel Hogarth
Toby Micklethwait <to...@micklethwait.demon.co.uk> wrote:
>The actual story is that a close friend of mine (single, female, age 29)
>was clamped at Virginia Water station at about 10pm on Friday 9.1.98 - a
>pretty awkward time. She parked from 2000 to 2300 (dark at all times).
>She believed that there was no charge at that time of night, which used
>to be true until recently. She was unaware of any clamping.
> ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^
If so then there is no legal justification for the clamping - unless
there was a plainly obvious sign which she should have seen. SWT have
probably also committed the tort of conversion, and maybe also theft act
offences concerning extortion.
>At 11pm on 13.1.98, not having been informed of any legal justification
>by either the clampers or SWT for the trespass to property, we cut the
>padlock and released the car.
>
>Although the demand note mentions 6 months in jail, I have yet to felt a
>police hand on my collar.
If there WAS legal justification for the action then you MAY be liable to
prosecution for criminal damage, although a fine would be normal for a
first offence. However if you thought you had a legal right to do what
you did - i.e. you thought the affixing had made the clamp legally yours
(actually possible) then you do not have the relevant mental element.
>Has anyone ever gone to jail for forcibly removing a clamp, on private
>land?
>
>* give your name and address
>* cut the clamp and drive off
>* await correspondence.
>
DON'T DO THIS if there is a clear sign - or you'll end up in the same
position as the defendant in Arthur v Anker - whatever the reason for the
case, the guy was made to pay hefty damages. ONLY do this if there is not
a clear sign. AND be careful, as the people who run clamping firms are
often security guard firms and the guys tend to run to size a bit.
>The contractual position seems to be that if you park on land then you
>have agreed to a contract which contains clauses which are (a) on the
>sign (or implied) and (b) reasonable.
>
>We have pointed out to SWT that clamping at Virginia Water is not
>reasonable because there was a previous system, not involving clamping,
>that worked OK. Also clamping is unreasonable under the passenger
>charter.
Not very convincing - the system may not have worked well in SWT's
opinion, and who's to say that it is passengers that use the facilities?
Beware of taking the poster's advice - you could end up paying a LOT more
than the clamping fee.
Joel
Marshall Rice
In article <6a03b5$brc$1...@lyra.csx.cam.ac.uk>, Joel Hogarth
<jr...@cam.ac.uk> writes
>This sounds very interesting - can you tell me any more? Such as: is
>there a contract between the parties? Does this provide the authority? is
>this the same as sending in debt collectors? or right of hypothec as in
>HP agreements?
If you're referring to DDF, no. It was originally a right of landowners
to distrain on straying livestock which were in the act of causing
damage - damage feasant - to crops, hedges, etc. In past centuries, the
right was extended to other chattels, but had all but been forgotten
until the clampers came along.
If you're referring to Admiralty law, much of it is founded on the
concept of a ship (these days, an aircraft or hovercraft too), or
sometimes its cargo, as a res, i.e. a thing in which rights and
interests other than those of property may subsist. A maritime lien, for
example, does not depend on possession like a conventional lien, but
vests in the ship itself.
Admiralty proceedings may accordingly be commenced either in rem
(against the ship itself), in personam (against the operators), or both
jointly. Warrants of arrest are freely issued in respect of ships if
they are thought necessary to prevent the subject-matter of an action in
rem from leaving the jurisdiction.
As Marc has already pointed out, it is an arcane and complex area of the
law. Some of it is fascinating, but much as dry as dust. Practitioners
not only need sharp minds, but a high threshold of boredom - Scrutton on
Charterparties is the best antidote to insomnia that I know of, and
makes Snell's Equity seem positively rivetting.
--
Marshall Rice
Joel Hogarth
Marshall, I did a search on the law faculty's CD ROM for distress damage
feasant. There are no cases after 1950 on this - is it possible that it
has been repealed?
If not, it seems that the holder (clamper) is justified in holding until
the car owner pays any damage caused - no cases for trespass are listed
- only for property damage and (dicta) personal injury. Even if it could
be used to apply damages for trespass this would only amount to a few
pounds at most - market rate for city centre parking - the best thing to
do would be to tender this sum, then the clamper must return the goods
or be liable for trespass to goods. Case after case shows that tender of
a reasonable sum to cover damage caused is enough to remove the holder's
power.
A lien in common law seems to be usually (always?) for return of a
contractual debt. Back to the consent argument again.
Joel
Marshall Rice
In article <34C49F...@cam.ac.uk>, Joel Hogarth <jr...@cam.ac.uk>
writes
>Marshall, I did a search on the law faculty's CD ROM for distress damage
>feasant. There are no cases after 1950 on this - is it possible that it
>has been repealed?
I don't think so. The lack of recent cases may simply mean that it's
settled law.
>If not, it seems that the holder (clamper) is justified in holding until
>the car owner pays any damage caused - no cases for trespass are listed
>- only for property damage and (dicta) personal injury.
There would certainly need to be more than a simple tresspass, but I
think that encumbering land in any of the ways I outlined in my previous
posting would suffice.
>Even if it could
>be used to apply damages for trespass this would only amount to a few
>pounds at most - market rate for city centre parking -
Often, but not always. It could easily run to the cost of removing and
storing the offending vehicle. More importantly, what of the expense
incurred in the clamping itself? It's still a grey area, IMHO.
>the best thing to
>do would be to tender this sum, then the clamper must return the goods
>or be liable for trespass to goods. Case after case shows that tender of
>a reasonable sum to cover damage caused is enough to remove the holder's
>power.
Indeed, but what *is* a reasonable sum? It must vary widely depending on
the circumstances.
>A lien in common law seems to be usually (always?) for return of a
>contractual debt. Back to the consent argument again.
There's a big difference between a common-law (or trader's) lien and a
right of DDF. The former indeed usually accrues as a result of a
contract between the owner of the subject-matter and a trader, but there
is no contractual element in the latter.
--
Marshall Rice
Toby Micklethwait
In article <6a0786$uq...@spock.tinet.ie>, Fergus O'Rourke
<calla...@tinet.ie> writes
>Forgive me for coming in late with this, but is it not the case that SWT
>runs the trains and Railtrack the carparks ?
>Toby Micklethwait wrote >
Fair point. I (as a Railtrack shareholder) understood that Railtrack
owned the land, and they do.
The situation is intriguing in that there is no written statement in any
notice of the land ownership. One has to bludgeon the information out of
Company secretary's department of SWT and rumour.
However it seems that Railtrack own the land, SWT lease it from
Railtrack, SWT have licensed International Security Ltd ("the Thugs").
SWT have a contract with the Thugs which SWT refuse to copy to us.
SWT run the stations. SWT run the parking.
Toby Micklethwait
In article <6a0juh$kbg$1...@lyra.csx.cam.ac.uk>, Joel Hogarth
<jr...@cam.ac.uk> writes
[snip]
> in Arthur v Anker - whatever the reason for the
>case, the guy was made to pay hefty damages. ONLY do this if there is not
>a clear sign. AND be careful, as the people who run clamping firms are
>often security guard firms and the guys tend to run to size a bit.
>Joel
>
As stated at the start of this thread, I would like to see the whole
judgement in Arthur v Anker. IANAL and do not have access to the cases.
I dont know the case reference. I can see that costs of an appeal court
case are high but I cannot see hefty actual damage. Were there punitive
damages? Has anyone got the full judgment?
Brief judgment is this:
A recent Court of Appeal case has helped to clarify some of the
principles surrounding car clamping on private land.
In Arthur v Anker The Times 1 December 1995, a motorist had parked his
car on private land in the centre of Truro, and subsequently returned to
find his vehicle clamped. It was accepted by the Court that there were
adequate warning notices stating that clamping was in operation, and
that a release fee would be charged for unclamping. However, the
motorist claimed compensation and exemplary damages for unlawful
interference with his vehicle under the Torts (Interference With
Goods) Act 1977. Prima facie, wheel clamping does constitute such a
tort within the meaning of the 1977 legislation, but the clamping
company was entitled to rely on the defence of volenti so that the
motorist was deemed to have consented to the clamping. This was so even
though he did not consent to the clamping itself; by parking in the
clamping zone the Court found that it was sufficient that he
had consented to the possibility of being clamped.
In summary, although the Court of Appeal's judgment only lays down
guidelines, wheel clamping on private land is permissible if:
The release fee is reasonable (£40 was held to be a reasonable sum).
The vehicle is released without delay; and
When the motorist renders the fee there are means by which (s)he might
communicate the offer of payment (i.e. there must be a contact name on
the clamping notice).
Alasdair Baxter
I may be wrong but are not railway companies in a rather special
position re parking because of powers conferred on them under the
British Rail Byelaws. I know BR has been abolished but I think there is
still a residual part of it which still deals with the byelaws.
I doubt, however, if the byelaws legalise clamping.
--
Alasdair Baxter, Nottingham, UK. Tel +44 115 9705100; Fax +44 115 9423263
"It's not what you say that matters but how you say it.
It's not what you do that matters but how you do it"
Toby Micklethwait
In article <+8b$EBAras...@dram.demon.co.uk>, Alasdair Baxter
<alas...@dram.demon.co.uk> writes
>I may be wrong but are not railway companies in a rather special
>position re parking because of powers conferred on them under the
>British Rail Byelaws. I know BR has been abolished but I think there is
>still a residual part of it which still deals with the byelaws.
>
>I doubt, however, if the byelaws legalise clamping.
byelaw or otherwise.
Clamping seems to be judgemade law. Arthur v Anker is the only case I
know.
The Scottish judges went the other way and said you cannot justify
clamping (a brutal trespass to property) by a mere sign - same as if you
write a sign "Trespassers will be shot".
Parliament is going to have to step in an rectify this bad judge made
law some time.
David Swarbrick
In article <nUet7BAJ...@micklethwait.demon.co.uk>, Toby
Micklethwait <to...@micklethwait.demon.co.uk> writes
>In article <+8b$EBAras...@dram.demon.co.uk>, Alasdair Baxter
><alas...@dram.demon.co.uk> writes
>>I may be wrong but are not railway companies in a rather special
>>position re parking because of powers conferred on them under the
>>British Rail Byelaws. I know BR has been abolished but I think there is
>>still a residual part of it which still deals with the byelaws.
>>
>>I doubt, however, if the byelaws legalise clamping.
>I do not think that parliament has ever legalised clamping, by law,
>byelaw or otherwise.
>
>Clamping seems to be judgemade law. Arthur v Anker is the only case I
>know.
Sorry, it isn't judge made law at all; it is the judges refusing to make
law which has left those clamped with no remedy.
>
>The Scottish judges went the other way and said you cannot justify
>clamping (a brutal trespass to property) by a mere sign - same as if you
>write a sign "Trespassers will be shot".
>
>Parliament is going to have to step in an rectify this bad judge made
>law some time.
Parliament should do something, yes, but I repeat the defect is that the
judges have refused to 'make new law'
--
David Swarbrick, Solicitor
http://www.swarb.co.uk/swarbrick (office) 'a damn fine web-site'
http://www.swarb.demon.co.uk (home)
Joel Hogarth
OK - I finally read Arthur v Anker again. The Court of Appeal held:
1. Clamping is a crime in Scotland due to the definition of theft in
Scotland, which does not include the words "intention permanently to
deprive" - it is both theft and extortion. It is not a crime in England &
Wales.
2. The justification for clamping is volenti - by reading the clear notice
you consent to the risk of clamping and to pay a reasonable commercial fee
for release if clamped. You are guilty of a tort if you try and remove the
clamps or your vehicle, and you are guilty of criminal damage if you damage
the clamps in removing them. You are also liable (like Arthur) to be sued
for the damage.
3. If there is no clear notice then the clamper is committing a trespass,
and possibly the crime of criminal damage. You may claim damages from the
clamper. Unless:
4. The clamper can establish distress damage feasant. The majority of the
court held that you had to prove actual or apprehended injury to property or
person by the object to allege this. Mere trespass was not enough - this is
unlikely to be a ground for the matter.
Hope this clears things up a little. Bet it would change if it got to the
House of Lords. I think I've already mentioned that I don't consider volenti
a good justification.
Joel
Alasdair Baxter
In article <6abb8d$990$1...@lyra.csx.cam.ac.uk>, Joel Hogarth
<jr...@cam.ac.uk> writes
>2. The justification for clamping is volenti - by reading the clear notice
>you consent to the risk of clamping and to pay a reasonable commercial fee
>for release if clamped. You are guilty of a tort if you try and remove the
>clamps or your vehicle, and you are guilty of criminal damage if you damage
>the clamps in removing them. You are also liable (like Arthur) to be sued
>for the damage.
What would happen if I were to phone (with a witness) the clamping
company and said "I intend to park on x land. I do not consent to my
car being clamped. I shall pay a 50p parking fee and no more" and put
the phone down.
One obviously has to make the facts suit the law.
BTW, which tort would I be guilty of were I to try and remove the clamps
or my vehicle?
Joel Hogarth
Alasdair Baxter wrote in message ...
>In article <6abb8d$990$1...@lyra.csx.cam.ac.uk>, Joel Hogarth
><jr...@cam.ac.uk> writes
>>2. The justification for clamping is volenti - by reading the clear notice
>>you consent to the risk of clamping and to pay a reasonable commercial fee
>>for release if clamped. You are guilty of a tort if you try and remove the
>>clamps or your vehicle, and you are guilty of criminal damage if you
damage
>>the clamps in removing them. You are also liable (like Arthur) to be sued
>>for the damage.
>
>What would happen if I were to phone (with a witness) the clamping
>company and said "I intend to park on x land. I do not consent to my
>car being clamped. I shall pay a 50p parking fee and no more" and put
>the phone down.
IMO you would have legal justification according to Arthur v Anker, which is
a recent Court of Appeal precedent - BUT - I don't know if the courts would
uphold it. There are other legal ways that could justify clamping if
required. IMO the best way is to subtract figures for all the trespasses
that occur and end up with a magical, say £40, in damages to the clamper.
Plus of course any extra expenses occurred.
>One obviously has to make the facts suit the law.
Exactly - constent is a bit of a pathetic argument. Creating a contract may
be better - I don't see how you could change the terms of a unilateral
offer...
>BTW, which tort would I be guilty of were I to try and remove the clamps
>or my vehicle?
Trespass to goods, conversion.
Joel
Will Dean
Joel Hogarth wrote in message <6abb8d$990$1...@lyra.csx.cam.ac.uk>...
>
>2. The justification for clamping is volenti - by reading the clear notice
>you consent to the risk of clamping and to pay a reasonable commercial fee
>for release if clamped. You are guilty of a tort if you try and remove the
>clamps or your vehicle, and you are guilty of criminal damage if you damage
>the clamps in removing them. You are also liable (like Arthur) to be sued
>for the damage.
>
What if they can't prove that you removed the clamp?
(i.e Both your car and the clamp are gone.)
I remember in Brixham harbour when they clamped a few people (trawlermen and
their contractors), everyone just cut the clamps off with burning gear and
threw them in the harbour.
The clamping man went white with rage and muttered about the law, but I
don't think anything happened. (Or could have.)
What's the situation there?
Note that I'm not encouraging criminal damage!
Will
Joel Hogarth
Will Dean wrote in message
<885674845.3315.0...@news.demon.co.uk>...
>
>Joel Hogarth wrote in message <6abb8d$990$1...@lyra.csx.cam.ac.uk>...
>>
>>2. The justification for clamping is volenti - by reading the clear notice
>>you consent to the risk of clamping and to pay a reasonable commercial fee
>>for release if clamped. You are guilty of a tort if you try and remove the
>>clamps or your vehicle, and you are guilty of criminal damage if you
damage
>>the clamps in removing them. You are also liable (like Arthur) to be sued
>>for the damage.
>>
>
>What if they can't prove that you removed the clamp?
>(i.e Both your car and the clamp are gone.)
OK in tort - res ipsa loquitor - it speaks for itself. You only have to
prove on the balance of probabilities. Can't see a judge failing to make you
liable in damages. You may get away with a criminal charge, but only if you
can create a reasonable doubt to the satisfaction of the magistrates.
>I remember in Brixham harbour when they clamped a few people (trawlermen
and
>their contractors), everyone just cut the clamps off with burning gear and
>threw them in the harbour.
>
>The clamping man went white with rage and muttered about the law, but I
>don't think anything happened. (Or could have.)
>
>What's the situation there?
Depends if the guy had legal justification for clamping.
>Note that I'm not encouraging criminal damage!
Of course not, nor would I allege that you were, as that would be defamatory
;-)
Joel
Paul Gardner
In article <885674845.3315.0...@news.demon.co.uk>, Will
Dean <w...@nospam.demon.co.uk> wrote
>
>Joel Hogarth wrote in message <6abb8d$990$1...@lyra.csx.cam.ac.uk>...
>>
>>2. The justification for clamping is volenti - by reading the clear notice
>>you consent to the risk of clamping and to pay a reasonable commercial fee
>>for release if clamped. You are guilty of a tort if you try and remove the
>>clamps or your vehicle, and you are guilty of criminal damage if you damage
>>the clamps in removing them. You are also liable (like Arthur) to be sued
>>for the damage.
>>
>
>What if they can't prove that you removed the clamp?
>(i.e Both your car and the clamp are gone.)
This has happened in Camden Town, where a certain garage has acquired a
reputation for being "clamp fairies", i.e. they remove the clamp for a
small fee and the motorist pleads innocence when queried about the
clamp.
In the absence of any evidence that the motorist removed the clamp
himself, they have been found liable only for the ticket.
--
Paul Gardner
To reply by private email, change polkadot to stripey in Reply-To address
Ian Dickson
In article <rkmBVBAh...@ratpack.demon.co.uk>, Paul Gardner
<spam.egg.sau...@i.hate.spam.com> writes
>In article <885674845.3315.0...@news.demon.co.uk>, Will
>Dean <w...@nospam.demon.co.uk> wrote
>>
>>Joel Hogarth wrote in message <6abb8d$990$1...@lyra.csx.cam.ac.uk>...
>>>
>>>2. The justification for clamping is volenti - by reading the clear notice
>>>you consent to the risk of clamping and to pay a reasonable commercial fee
>>>for release if clamped. You are guilty of a tort if you try and remove the
>>>clamps or your vehicle, and you are guilty of criminal damage if you damage
>>>the clamps in removing them. You are also liable (like Arthur) to be sued
>>>for the damage.
>>>
that you must avoid damage to it. ( This normally involves taking off
the wheel and perhaps dismantling the suspension).
What you do with the clamp then was never made clear - leave it where it
was or take it to the local police station for their safe custody?
--
Ian Dickson Moneyweb - http://www.moneyweb.co.uk 01242 680151
Find your Local IFA.
"probably the UK's most comprehensive Personal Finance site" - The FT
"lots of useful information"- Which? "packed to bursting"- WWW Directory
Financial Webmasters - free site listing and link.
UK FinServ Professional?, join Finservuk-list via Moneyweb. Moderated
Paul C. Dickie
>In article <885674845.3315.0...@news.demon.co.uk>, Will
>Dean <w...@nospam.demon.co.uk> wrote
>>(i.e Both your car and the clamp are gone.)
>This has happened in Camden Town, where a certain garage has acquired a
>reputation for being "clamp fairies", i.e. they remove the clamp for a
>small fee and the motorist pleads innocence when queried about the
>clamp.
>In the absence of any evidence that the motorist removed the clamp
>himself, they have been found liable only for the ticket.
Fairy Nuff?
--
< Paul >
Paul Gardner
In article <PZBTJXAB...@iand.demon.co.uk>, Ian Dickson
<i...@iand.demon.co.uk> wrote><spam.egg.sau...@i.hate.spam.com> writes
>>>>
>>>>2. The justification for clamping is volenti - by reading the clear notice
>>>>you consent to the risk of clamping and to pay a reasonable commercial fee
>>>>for release if clamped. You are guilty of a tort if you try and remove the
>>>>clamps or your vehicle, and you are guilty of criminal damage if you damage
>>>>the clamps in removing them. You are also liable (like Arthur) to be sued
>>>>for the damage.
>>>>
I didn't actually write the above, although Ian D's editing may imply it
to some.
>It has been stated in many places that REMOVAL of the clamp is fine, but
>that you must avoid damage to it. ( This normally involves taking off
>the wheel and perhaps dismantling the suspension).
Indeed.
>What you do with the clamp then was never made clear - leave it where it
>was or take it to the local police station for their safe custody?
The advice I was given some years back was to inform the clampers that
their property had been taken to a safe place and was awaiting their
collection. The safe place could, I suppose, be a police station - IF
you could persuade the desk sergeant to accept it.
Toby Micklethwait
>
>1. Clamping is a crime in Scotland due to the definition of theft in
>Scotland, which does not include the words "intention permanently to
>deprive" - it is both theft and extortion. It is not a crime in England &
>Wales.
>
>you consent to the risk of clamping and to pay a reasonable commercial fee
>for release if clamped. You are guilty of a tort if you try and remove the
>clamps or your vehicle, and you are guilty of criminal damage if you damage
>the clamps in removing them. You are also liable (like Arthur) to be sued
>for the damage.
>
>and possibly the crime of criminal damage. You may claim damages from the
>clamper. Unless:
>
>4. The clamper can establish distress damage feasant. The majority of the
>court held that you had to prove actual or apprehended injury to property or
>person by the object to allege this. Mere trespass was not enough - this is
>unlikely to be a ground for the matter.
>
>Hope this clears things up a little. Bet it would change if it got to the
>House of Lords. I think I've already mentioned that I don't consider volenti
>a good justification.
>
>Joel
>
>
>
website, which is slowly fulfulling its ambition to be the UK website
for anti-clampers.
It does seem that Arthur v Anker covers the case where the parker did
read the sign. Does it in your view have any effect on cases where the
parker did not read the sign?
You say "clear notice". By "clear" do you mean "unambiguous" or "in
large print"?
Joel Hogarth
Toby Micklethwait wrote in message ...
>Thank you for your reply which I shall take the liberty of placing on my
>website, which is slowly fulfulling its ambition to be the UK website
>for anti-clampers.
>
>It does seem that Arthur v Anker covers the case where the parker did
>read the sign. Does it in your view have any effect on cases where the
>parker did not read the sign?
hmmm, difficult. If the sign is clear enough then 1) you are going to have
difficulty convincing a court of this, and 2) you may be 'deemed' to have
notice of the sign.
If the sign was not clear enough, then consent fails, and Arthur v Anker
rules out distress damage feasant provided you haven't caused any actual
damage, and the clamper will be liable in tort for trespass to goods, so you
should be able to claim damages. There is also a good possibility of
criminal liability under: Criminal Damage Act, Harrassment Act, Public Order
Act, etc.
>You say "clear notice". By "clear" do you mean "unambiguous" or "in
>large print"?
Well certainly large enough and unambiguous enough to attract attention to
the fact that the car is liable to be clamped if parked there. The detailed
arrangements probably just need to be readable on inspection.
Joel
Rainer Thonnes
In article <rkmBVBAh...@ratpack.demon.co.uk>,
Paul Gardner <spam.egg.sau...@i.hate.spam.com> writes:
> In article <885674845.3315.0...@news.demon.co.uk>, Will
> Dean <w...@nospam.demon.co.uk> wrote
> >
> >(i.e Both your car and the clamp are gone.)
>
> This has happened in Camden Town, where a certain garage has acquired a
> reputation for being "clamp fairies", i.e. they remove the clamp for a
> small fee and the motorist pleads innocence when queried about the
> clamp.
>
> In the absence of any evidence that the motorist removed the clamp
> himself, they have been found liable only for the ticket.
This is unbelievable. Surely there is no need for the motorist to
get his hands dirty to be held to have "removed" it, and instructing
fairies to act on his behalf is tantamount to the same thing.
Presumably, then, the authorities don't know about the fairies, but
this is also unbelievable if motorists generally know about them.
I don't suppose the fairies are really just a sister company of the
"official" clamp release firm, cashing in on the feel-good-factor
the motorist experiences on apparently getting one over on the
authorities? Maybe this "small fee" is still a goodly fraction of
the official release fee, but the motorist is somehow happier to
pay it than the official one.
Marshall Rice
In article <6an6n4$3t8$1...@lyra.csx.cam.ac.uk>, Joel Hogarth
<jr...@cam.ac.uk> writes
>If the sign was not clear enough, then consent fails, and Arthur v Anker
>rules out distress damage feasant provided you haven't caused any actual
>damage, and the clamper will be liable in tort for trespass to goods, so you
>should be able to claim damages.
I still haven't read the judgement, but the old authorities suggest that
simply encumbering land to an extent incompatible with the intentions of
the legitimate user is sufficient to found DDF.
As I have already pointed out, just occupying a space in a fee-paying
car park without having paid probably would not suffice, but IMHO
occupying a private parking space which a legitimate user may wish to
avail himself of, or parking on an ornamental verge to the detriment of
its aspect, would.
--
Marshall Rice
Alasdair Baxter
In article <EnI82H.6z3.0.sta...@dcs.ed.ac.uk>, Rainer
Thonnes <r...@ukol.com> writes
>This is unbelievable. Surely there is no need for the motorist to
>get his hands dirty to be held to have "removed" it, and instructing
>fairies to act on his behalf is tantamount to the same thing.
It may well be but there are a lot of curious things in the law. It is
fairly well established in road traffic law that a person "uses" a
vehicle either by driving it or having his employee drive it with the
word "employee" given a restricted meaning. In West Yorkshire Trading
Standards Service - v - Lex Vehicle Leasing Ltd (1995)QBD Div. Ct., it
was held that a vehicle owner did not "use" the vehicle when it was
being driven by a self-employed driver.
Paul Gardner
>In article <rkmBVBAh...@ratpack.demon.co.uk>,
>Paul Gardner <spam.egg.sau...@i.hate.spam.com> writes:
>
>> This has happened in Camden Town, where a certain garage has acquired a
>> reputation for being "clamp fairies", i.e. they remove the clamp for a
>> small fee and the motorist pleads innocence when queried about the
>> clamp.
>>
>> In the absence of any evidence that the motorist removed the clamp
>> himself, they have been found liable only for the ticket.
>
>get his hands dirty to be held to have "removed" it, and instructing
>fairies to act on his behalf is tantamount to the same thing.
But Camden Council apparently had great difficulty proving that the
motorists had INSTRUCTED the good fairies to remove them. It would seem
that the clamp removal was a random act of kindness by strangers.
>Presumably, then, the authorities don't know about the fairies, but
>this is also unbelievable if motorists generally know about them.
This was nearly two years ago and I haven't been following developments
since then. At the time I was working on a local rag relevant to that
area, so I do know that the council was aware of the situation and
apparently felt powerless to do anything about it. I don't know whether
they ever found a way round this loophole but I could look into it if I
find the time.
Your latter comment doesn't necessarily follow. I understand that the
motorists concerned were approached by the "fairies" [no corny
'soliciting' jokes, please]. Perhaps the council eventually caught these
characters in a sting operation - I haven't really followed events since
leaving that particular rag.
>I don't suppose the fairies are really just a sister company of the
>"official" clamp release firm, cashing in on the feel-good-factor
>the motorist experiences on apparently getting one over on the
>authorities? Maybe this "small fee" is still a goodly fraction of
>the official release fee, but the motorist is somehow happier to
>pay it than the official one.
I think the "small fee" was something in the region of £10-£15. Rather
cheaper than £90 plus VAT plus several hours waiting for the clampers to
bother to turn up.
Joel Hogarth
Marshall Rice wrote in message ...
>I still haven't read the judgement, but the old authorities suggest that
>simply encumbering land to an extent incompatible with the intentions of
>the legitimate user is sufficient to found DDF.
>
>As I have already pointed out, just occupying a space in a fee-paying
>car park without having paid probably would not suffice, but IMHO
>occupying a private parking space which a legitimate user may wish to
>avail himself of, or parking on an ornamental verge to the detriment of
>its aspect, would.
Well, I have to respect your view as it is exactly the one that Hirst LJ
proposed in Arthur v Anker. Unfortunately, his was the minority view, and
doesn't now represent English law (until challenged in the House of Lords)
Joel